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Court of AppealDismissedCivil Appeal No. 9 of 2017· [2021] KECA 453 (KLR)

Karinga Gaciani & 11 others v Ndege Kabibi Kimanga & another [2021] KECA 453 (KLR)

Court of Appeal
9 July 2021
WKW. KaranjaMohamed Abdulahi WarsameM. WarsameASAsike-Makhandia
2,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that registering and subdividing family land does not erase customary trust rights held by other family members.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nyeri against a judgment of the Environment and Land Court at Kerugoya (B. N. Olao, J.) which cancelled the registration of the twelve appellants as proprietors of subdivisions of land parcel Mutira/Kaguyu/637 and declared that the land was held in trust, directing transfer of 1.5 acres each to the respondents. The dispute arose from a 1940s levirate union in which Kabibi Kimanga took over the wife of his elder brother, Gaciani Kimanga, who had left for Tanzania. The suit land was demarcated in 1959 and registered in the name of the 1st appellant, the eldest son, to hold in trust for the family, at a time when women could not be registered as landowners. Following a 1998 transfer and a 2011 subdivision, the respondents asserted a customary trust claim. The appellants argued the evidence was insufficient and that the peculiar relationship between the parties, arising from the levirate union, could not ground a customary trust. The Court, applying the Supreme Court's guidelines in Isack M'inanga Kiebia v Isaaya Theuri Mlintari on customary trust claims, held that all five elements were satisfied: the land was clan land, the claimants belong to the family, their relationship is not remote, and their claim is directed against the registered proprietor. The Court held that registration and subdivision do not extinguish rights under Kikuyu customary law, and that children of a levirate union hold legitimate claims to family land, a denial of which would offend constitutional anti-discrimination principles. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Whether the respondents proved a customary trust over the suit land

Holding

The court applied the five-element test from Isack M'inanga Kiebia v Isaaya Theuri Mlintari and found the land was clan land registered in the name of the eldest son to hold in trust for the whole family, including the respondents.

Reasoning

The land was registered in 1959 in the name of the 1st appellant as eldest son because women could not then be registered. The claimants belong to the same family and clan, and their relationship is not remote. Their claim is directed against the registered proprietor. The 1998 transfer and 2011 subdivision could not extinguish the customary trust, so the respondents' overriding interest was proved.

p. 3
02

Whether the peculiar relationship between the parties defeats a customary trust claim

Holding

No. Children of the levirate union between Wangeci and Kabibi Kimanga are family members with legitimate claims to the suit property.

Reasoning

The court held that to deny the respondents a claim merely because they descend from a levirate union would offend the constitutional principles against discrimination, citing CKC & Another v ANC. A child's entitlement to inherit is unaffected by the circumstances of birth or gender.

p. 3
03

Whether the trial court erred in its assessment of the evidence

Holding

The trial court correctly addressed its mind to the facts and applied the applicable law; the presumption of trust was not dislodged.

Reasoning

As a first appeal the court re-assessed the evidence and reached its own conclusions, bearing in mind it did not see or hear the witnesses. On re-evaluation, it found the trial court's finding that the clan intended the eldest son to hold the land in trust for all family members was sound and the appeal had no merit.

p. 3

Legal principles established

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  • A customary trust, once proved to subsist, is one of the trusts to which a registered proprietor is subject under section 28 of the Land Registration Act, notwithstanding first registration or subsequent subdivision of title.
  • Registration and subsequent subdivision of original title does not extinguish rights under Kikuyu customary law and does not relieve the registered owner of the duties of trusteeship.
  • Children born of a levirate union hold a legitimate claim to family land equally with other family members; treating them as incapable of inheriting offends constitutional principles against discrimination.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Land Registration Actsection 28
  • Registered Land Act (repealed)
  • Constitution of Kenyaprinciples against discrimination

Cases cited (4)

  • Selle vs Associated Motor Boat Co.
    [1968] EA 123
  • Isack M'inanga Kiebia v. Isaaya Theuri Mlintari & Another
    (2018) eKLR
  • CKC & Another (Suing through their mother and next friend JWN) vs. ANC
    [2019] eKLR
  • Mwongera Mugambi Rinturi & Another vs. Josphine Kaarika & 2 Others
    [2015] eKLR
On appeal from
Environment and Land Court at Kerugoya
ELC Case No. 220 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal from the Environment and Land Court (a court with the status of the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karinga Gaciani & 11 others v Ndege Kabibi Kimanga & another [2021] KECA 453 (KLR)", Case Analysis (2021). Civil Appeal No. 9 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/453/eng@2021-07-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.